Swaters v. Lawson , 2014 Ohio 2252 ( 2014 )

[Cite as Swaters v. Lawson, 2014-Ohio-2252.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
FLORENCE SWATERS, : APPEAL NOS. C-130604
C-130627
Plaintiff-Appellee, : TRIAL NO. A-1001370
vs. :
O P I N I O N.
KRISTINE KLEVE LAWSON, :
and :
JOSEPH L. FORD III, :
Defendants-Appellants, :
and :
CHRISTOPHER GARDNER, :
Intervenor-Appellee. :
Civil Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Final Judgment Entered
Date of Judgment Entry on Appeal: May 28, 2014
Graydon, Head & Ritchey LLP, Scott K. Jones and Stacy A. Cole, for Plaintiff-
Appellee Florence Swaters,
Timothy A. Smith, for Defendant-Appellant Kristine Kleve Lawson,
Joseph L. Ford III, pro se,
Gottesman & Associates and Zachary Gottesman, for Intervenor-Appellee.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
H ILDEBRANDT , Judge.
{¶1} Defendants-appellants Kristine Kleve Lawson and Joseph L. Ford
III appeal the judgment of the Hamilton County Court of Common Pleas granting a
motion to enforce a settlement agreement and dismissing all claims filed in a dispute
over the ownership of a vintage automobile.
Ownership Claims
{¶2} Plaintiff-appellee Florence Swaters is a resident of Belgium. In
February 2010, she filed a complaint alleging that her father Jacques Swaters had
purchased the chassis of a vintage Ferrari that had been previously reported stolen in
Ohio from Karl Kleve, Lawson’s father. According to the complaint, the automobile
had been cleared for sale by Belgian authorities, and Jacques Swaters had purchased
the car in good faith. Swaters sought possession of the remaining parts of the vehicle
from Lawson and others, asserting that her father had settled all ownership issues
with Kleve.
{¶3} Lawson, as a beneficiary of Kleve’s estate, filed an answer and
counterclaim in which she alleged that Jacques Swaters and others had wrongfully
gained possession of the car. The dispute over the ownership of the Ferrari
continued for several years, with Ford and intervenor-appellee Christopher Gardner
also asserting interests.
{¶4} In March 2013, the parties executed a document titled “Heads of
Agreement.” The purpose of the agreement, according to its own terms, was “to
extinguish all claims and counterclaims” among the parties in relation to the Ferrari.
The agreement provided for delivery of the various automobile parts to an auction
house in London and for distribution of the proceeds after the car had been sold.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} The agreement identified the parties as the “BC,” the Belgian
contingency, and the “OC,” the Ohio contingency. Paragraph 2 of the agreement
stated the following:
All claims and counterclaims between BC and OC whether, already
asserted or not, [sic] are hereby waived and permanently extinguished on
distribution of the funds from the sale to the signees of this agreement.
BC and the OC parties will promptly enter an agreement discontinuing all
action in Ohio in such form as is appropriate under Ohio law.
{¶6} Although Paragraph 2 of the agreement made reference to
dismissal under Ohio law, Paragraph 12 stated that “[t]his Agreement shall be
governed by English law and any dispute in relation to it will be determined by the
High Court of Justice in London.”
{¶7} On July 23, 2013, Florence Swaters filed a motion to enforce the
Heads of Agreement and to dismiss the action. On August 19, 2013, the trial court
issued a judgment entry granting the motion. In its entry, the court made specific
orders concerning the delivery of the various parts of the Ferrari, the transfer of title,
and the disposition of the proceeds from the auction. In the same judgment entry,
the court dismissed all pending claims and counterclaims with prejudice.
The Motion to Dismiss the Instant Appeal as Moot
{¶8} As a threshold issue, we must address the appellees’ motion to
dismiss the appeals on the basis that judgment has been satisfied and that the
appeals are therefore moot. In support of the motion, Swaters and Gardner have
submitted an affidavit and other documents purporting to demonstrate that Lawson
and Ford have fulfilled their obligations under the agreement and under the trial
court’s order enforcing that agreement.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} We find no merit in the motion to dismiss. The affidavit and other
exhibits submitted to this court by Swaters and Gardner were not before the trial
court and are not part of the appellate record within the meaning of App.R. 9(A).
See, e.g., Willis v. Martin, 4th Dist. Scioto No. 06CA3053, 2006-Ohio-4846, ¶ 24
(affidavit submitted to the court of appeals but not to the trial court was not
cognizable under App.R. 9). Thus, we cannot consider those materials, and we
hereby overrule the motion to dismiss.
The Trial Court’s Enforcement of the Settlement Agreement
{¶10} We turn now to the merits of the appeals. In three related
assignments of error, Lawson and Ford argue that the trial court erred in dismissing
their claims prior to the distribution of the proceeds of sale; that the court erred in
holding that the Heads of Agreement was enforceable; and that the court erred in
failing to find Florence Swaters in breach of the agreement. Because we conclude
that the trial court erred in failing to enforce the forum-selection clause in paragraph
12 of the agreement, we reverse the judgment.
{¶11} A court must construe a contract as a whole and give effect to each
of its provisions if it is reasonable to do so. Saunders v. Mortensen, 101 Ohio St.3d
86, 2004-Ohio-24, 801 N.E.2d 452, ¶ 16. The court must enforce the plain and
ordinary meaning of the contract if its terms are unambiguous. Adaranijo v. Morris
Invest. Co., 1st Dist. Hamilton No. C-070453, 2008-Ohio-2705, ¶ 6, citing Saunders
at ¶ 9. The construction of a contract is a question of law, and we accordingly review
the judgment of the trial court de novo. Cincinnati Entertainment Assoc., Ltd. v. Bd.
of Commrs. of Hamilton Cty., 141 Ohio App.3d 803, 810, 753 N.E.2d 884 (1st
Dist.2001).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} “Forum-selection clauses are ‘presumptively valid’ and have
generally been enforced.” Zilbert v. Proficio Mtge. Ventures, L.L.C., 8th Dist.
Cuyahoga No. 100299, 2014-Ohio-1838, ¶ 20, citing Conway v. Huntington Natl.
Bank, 10th Dist. Franklin No. 11AP-1105, 2013-Ohio-1201.
{¶13} In this case, the parties do not dispute the validity of the forum-
selection clause. The clause unambiguously requires any dispute arising under the
Heads of Agreement to be resolved in the High Court of Justice in London. Thus, the
trial court erred in enforcing the terms of the Heads of Agreement, because the
forum-selection clause divested it of any authority to implement the agreement. And
because the trial court’s dismissal of all claims was based on the erroneous premise
that the court had the authority to enforce the agreement, the granting of the motion
to dismiss was also improper.
{¶14} Therefore, to the extent that Lawson and Ford contend that the
trial court erred in enforcing the Heads of Agreement and in dismissing the claims,
we sustain the assignments of error.
Conclusion
{¶15} We reverse the judgment of the trial court and enter judgment
denying the motion to enforce the Heads of Agreement and reinstating the pending
claims dismissed by the trial court.
Judgment reversed and final judgment entered.
CUNNINGHAM, P.J., and FISCHER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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